Inman, Doyle B.

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University of Kentucky

Kentucky Law JournalVolume 36 | Issue 3 Article 121948Divorce: Agreement of Parties as to AlimonyDoyle B. InmanUniversity of KentuckyFollow this and additional works at: https://uknowledge.uky.edu/kljPart of the Family Law CommonsRight click to open a feedback form in a new tab to let us know how this document benefitsyou.This Note is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal byan authorized editor of UKnowledge. For more information, please contact UKnowledge@lsv.uky.edu.Recommended CitationInman, Doyle B. (1948) "Divorce: Agreement of Parties as to Alimony," Kentucky Law Journal: Vol. 36 : Iss. 3 , Article 12.Available at: https://uknowledge.uky.edu/klj/vol36/iss3/12DIVORCE: AGREEMENT OF PARTIES AS TO ALIMONYThe number of recent cases on record involving agreements ofparties in regard to alimony is an attestation that during the lastfew decades they have become increasingly popular. Generally, itmay be said that courts favor them, and there are many reasons whythey should do so. Where marital difficulties are in existence andreconciliation is not possible, a voluntary settlement of many of theproblems that beset the parties is a great aid to the courts. That theparties have been able to reach some sensible and amicable agree-ment must influence the court when it considers how often duringlitigation of this kind the parties allow their unrestrained hate andresentment to add to the delay and expense of the suit. An amicableadjustment has much to recommend it, and many courts have givenjudicial utterance to the encouragement of them. Typical of theesteem in which the more modern courts hold them is this state-ment:"Marriage is the basis of orderly society. The pres-ervation of the marital status is of the utmost impor-tance to the community and should be jealouslyguarded. Infortunately, in our present civilization, thenecessity for separation or divorce in certain instancesand oft-times the desire for freedom in other instanceshave become forces of destruction to the marital status.This condition must be recognized as a reality. It is inthe interest of society that, when the marriage rela-tionship has been destroyed and the parties no longercontinue to cohabit, the termination of the marital re-lationship be arranged between the husband and wifein an orderly fair and equitable manner. Where hus-band and wife have agreed to an orderly settlement oftheir disputes and have entered into a written separa-tion which on its face appears to be fair and equitable,a court should hesitate to set aside such an agreement.Orderly society in a sense has been preserved. The willof the parties as expressed by their agreement shouldbe disturbed only where their agreement is repugnant tojustice as between them or contrary to the interest ofsociety in the form of the state "'It would be well if the discussion could be concluded on thispleasing note, but unfortunately this cannot be done, for all courts donot hold the same opinion, particularly if the agreement concerns theamount of alimony to be awarded the wife. If the parties in settlingtheir many difficulties, succeed in reaching a settlement as to ali-mony, and this agreement comes before the court in a subsequentsuit for divorce, a conflict may arise between the wishes of theparties and the discretion of the court on dissolution of the maritalres.1Fales v. Fales, 160 Misc. Rep. 799, 290 N.Y. Supp. 655, 659(1936).STUDENT NOTES AND COMMENTSThe precise question presented by tins situation is, to whatextent, if at all, is a court of equity bound to sustain the wishes ofthe parties to a divorce suit as to the amount of alimony determinedby them and expressed in a separation agreement?From a study of the decisions on this point it was found that thecourt might (1) consider it advisory to the discretion of the court,2or (2) adopt it, if it is fair and reasonablePerhaps the greater number of cases support the first view. Allcases wherein it is said that such agreements are evidential,' where arecommendation' will be considered," and may be adopted or re-jected, are of this type.Such stipulations or agreements can not bind the court, it is said,because the power to grant alimony is inherent in the procedure ofdivorce,' an action over which the courts possess exclusive juris-diction, and the parties cannot by agreement oust the court of juris-diction to so award alimony. A contention that the subject of ali-mony can be removed from the jurisdiction of the court by thevoluntary action of the parties is as untenable as a claim that theycould effectively agree upon a divorce and its terms. Alimony doesnot arise from any business transaction, but from the relation ofmarriage."3 It is a status which the state is interested in maintainingand in every action for divorce the state is therefore an interestedparty. The state has deemed it to be contrary to the public interestto permit the husband, if he is the wayward party, not only to bringabout the dissolution of the marriage but to escape the duty of sup-port arising from marriage status as well. Therefore, while it istrue that by giving the parties an unrestricted right to make andenforce an agreement as to alimony, none of these fundamental'See notes 4, 5, 6, and 7 infra.'Gallemore v. Gallemore, 94 Fla. 516, 114 So. 371 (1927), Pettyv. Petty, 147 Kan. 342, 76 P 2d 850 (1938), Shaffer v Shaffer, 135Kan. 35, 10 P 2d 17 (1932) Clark v Clark, 301 Ky. 682, 192 S.W 2d968 (1946), Alderson v. Alderson, 247 Ky. 12, 56 S.W 2d 534 (1933),Luttmer v. Luttmer, 143 Ky. 844, 137 S.W 777 (1911), Parsons v.Parsons, 23 Ky L. Rep. 223, 62 S.W 719 (1901), North v North, 339Mo. 1226, 100 S.W 2d 582 (1936).'Lum v Lum, 138 N.J. Eq. 198, 47 A. 2d 555 (1946) Perry v.Perry, - Tenn. - 192 S.W 2d 830 (1946), Brown v. Brown, 156Tenn. 619, 4 S.W 2d 345 (1928).'Jones v Jones, 104 Utah 275, 139 P 2d 222 (1943), Barracloughv. Barraclough, 100 Utah 196, 11 P 2d 792 (1941)'Cahill v. Cahill, 316 Ill. App. 324, 45 N.E. 2d 69 (1942), Rine-hart v. Rinehart, 52 Wyo. 363, 75 P 2d 390 (1938)'Russell v Russell, 247 Ala. 284, 24 So. 2d 124 (1945), Herrickv Herrick, 319 Ill. 146, 149 N.E. 820 (1925), Shoop v. Shoop, 58 S.D.593, 237 N.W 904 (1931).'Sessions v. Sessions, 178 Minn. 75, 226 N.E. 701 (1929).'Ibid." Audobon v. Shufeldt, 181 U.S. 575, 45 L. Ed. 1009, 21 Sup. Ct.735 (1901).KENTUCKY LAW JouRNAprinciples may be viblated, still there is always the chance that theparties will act in abuse of them, and this possibility has induced mthe courts a cautious policy which is, responsible for the rules andconditions with which they surround any agreement between theparties as to alimony.'The tendency of the later decisions seems to be toward adoptionof such agreements, if they are found fair and reasonable, the propo-sition of the second category.It is true that the court itself is the final arbiter as to the fairnessand reasonableness of the contract, and it may be argued that theterms of alimony which are submitted to the court in the form of acontract can not be considered to be more than, in substance, ad-visory to its discretion.But this argument is in the end unsatisfactory, because it is ap-parent that the rule imposes more than advice upon the court. Thereis a wide latitude wherein fairness and reasonableness reside, andif the terms of the contract can be found within those bounds, thecourt should be but little less than compelled to adopt the agreement.There is a position to be taken in regard to these agreementswhich as yet has been unmentioned. That would be to hold theagreement unqualifiedly obligatory upon the court. Needless to saythere are no judicial decisions which support this view, although itwould be possible from a strictly contractual approach to reach sucha result. But whether the result would be desirable is another ques-tion. There seems to be no escaping the fact that all such contractsshould be fair and reasonable. If the personal interest of the wifewere the sole consideration, it might well be argued that she shouldbe bound by her agreement, but there are considerations of publicconcern present that militate against giving her this ability to irrev-ocably consent to such a settlement of the duty of support. It is uponthe courts to enforce these considerations of public concern, and anydenial or abridgment of their supervisory powers is also a disavowalof'the public's interest in the matter.Considering the problem from a practical standpoint, few ob3ec-tions can be made to the approach utilized in the second category.'This problem of what effect to give to an agreement of theparties as to alimony is not only raised at the time of the divorce,but often, even years after the court has found the contract fair andequitable and in its discretion adopted its terms as part of the decree,a party will resist modification of the decree on the contention thatthe court may not disregard an agreement between the parties whichat the time of divorce it had found fair and adequate. This argumenthas found no support, for it is not the contract that the court ismodifying, but its own decree. This is one of the most potent reasonswhy the terms of a contract as to the amount of alimony, if found bythe court to be just, should always be adopted by the decree, ratherthan left to stand as a mere contract between the parties. The courtwill never thereafter encounter any difficulty if a modification of itis sought.STUDENT NOTES AND COMIMENTS 335It gives to the parties the greatest amount of freedom m contractingconsistent with the demand of the state for an interest in the sup-port of the wife.DOYLE B. INMAN

Divorce: Agreement of Parties as to Alimony

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Divorce: Agreement of Parties as to Alimony

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